Criminal Law (Forensic Procedures) Amendment Act

Link to law: http://www.gov.za/documents/criminal-law-forensic-procedures-amendment-act-0
Published: 2014-01-27

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Criminal Law (Forensic Procedures) Amendment Act, Act No. 37 of 2013
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 583 Cape Town 27 January 2014 No. 37268
THE PRESIDENCY No. 52 27 January 2014
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
Act No. 37 of 2013: Criminal Law (Forensic Procedures) Amendment Act, 2013


2 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
ACT To amend the Criminal Procedure Act, 1977, so as to provide for the taking of specified bodily samples from certain categories of persons for the purposes of forensic DNA analysis; to provide in particular for the protection of the rights of women and children in the taking of DNA samples; to further regulate proof of certain facts by affidavit or certificate; to add to the Criminal ProcedureAct, 1977, a Schedule 8 of offences in respect of which DNA samples must be taken; to amend the South African Police Service Act, 1995, to establish and regulate the administration and maintenance of the National Forensic DNADatabase of South Africa; to provide for the conditions under which the samples or forensic DNA profiles derived from the samples may be retained or the periods within which they must be destroyed; to provide for the use of forensic DNA profiles in the investigation of crime and the use of such profiles in proving the innocence or guilt of persons before or during a prosecution or the exoneration of convicted persons, to assist in the identification of missing persons and unidentified human remains; to provide for protection of the rights of children in the retention and removal of forensic DNA profiles; to provide for oversight over the National Forensic DNA Database and the handling of complaints relating to the taking, retention and use of DNA samples and forensic DNA profiles; to repeal certain provisions of the Firearms Control Act, 2000, and the Explosives Act, 2003, which overlap with powers provided for in the Criminal ProcedureAct, 1977, regulating the powers in respect of the taking of fingerprints and bodily samples for investigation purposes; to provide for transitional provisions in respect of the DNA database; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, asfollows:— Amendment of section 36A of Act 51 of 1977, as inserted by section 2 of Act 6 of 2010
1. Section 36A of the Criminal Procedure Act, 1977, is hereby amended— (a) by the insertion before the definition of ‘‘authorised person’’ of the following
definition: ‘‘(aA) ‘authorised officer’ means the police officer commanding the
Division responsible for forensic services within the South African Police Service, or his or her delegate;’’;
5
10
(English text signed by the President) (Assented to 23 January 2014)
4 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(b) by the substitution for the definition of ‘‘authorised person’’ of the following definition:
‘‘(b) ‘authorised person’means— (i) with reference to photographic images, fingerprints or body-
prints, any police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in the performance of his or her official duties; and
(ii) with reference to buccal samples, any police official or member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case, but has successfully undergone the training prescribed by the Minister of Health under the National HealthAct, in respect of the taking of a buccal sample;’’;
(c) by the insertion after the definition of ‘‘body-prints’’ of the following definitions:
‘‘(cA) ‘bodily sample’ means intimate or buccal samples taken from a person;
(cB) ‘buccal sample’ means a sample of cellular material taken from the inside of a person’s mouth;’’;
(d) by the substitution for the definition of ‘‘comparative search’’ of the following definition:
‘‘(f) ‘comparative search’ means the comparing [of fingerprints, body-prints or photographic images, taken under any power conferred by this Chapter,] by [an] the authorised officer of— (i) fingerprints, body-prints or photographic images, taken under
any power conferred by this Chapter, against any database referred to in Chapter 5A of the South African Police Service Act; and
(ii) forensic DNA profiles derived from bodily samples, taken under any power conferred by this Chapter, against forensic DNA profiles contained in the different indices of the NFDD referred to in Chapter 5B of the South African Police Service Act;’’;
(e) by the insertion, after the definition of ‘‘comparative search’’, of the following definitions:
‘‘(fA) ‘crime scene sample’means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person;
(fB) ‘DNA’ means deoxyribonucleic acid which is a bio-chemical molecule found in the cells and that makes each species unique;
(fC) ‘forensic DNA analysis’ means the analysis of sections of the DNA of a bodily sample or crime scene sample to determine the forensic DNA profile: Provided that this does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person;
4
5
10
15
20
25
30
35
40
45
50
6 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(fD) ‘forensic DNA profile’ means the results obtained from forensic DNA analysis of bodily samples taken from a person or samples taken from a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided this does not contain any information on the health or medical condition or mental characteristic of a person or the predisposition or physical information of the person other than the sex of that person;
(fE) ‘Independent Police Investigative Directorate Act’ means the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011);
(fF) ‘intimate sample’ means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample;
(fG) ‘National Health Act’ means the National Health Act, 2003 (Act No. 61 of 2003);
(fH) ‘NFDD’ means the National Forensic DNA Database of South Africa, established in terms of section 15G of the South African Police Service Act;’’;
(f) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:
‘‘Any police official who, in terms of this Act or any other law takes the fingerprints, a body-print or buccal sample or ascertains any bodily feature of a child must—’’; and
(g) by the addition of the following subsections: ‘‘(3) Buccal samples must be taken by an authorised person who is of
the same gender as the person from whom such sample is required with strict regard to decency and order. (4) Notwithstanding any other law, an authorised person may take a
buccal sample or cause the taking of any other bodily sample with the consent of the person whose sample is required or if authorised under— (a) section 36D; or (b) section 36E. (5) Any authorised person who, in terms of this Chapter or in terms of
any other law takes a buccal sample from any person, must do so— (a) in accordance with the requirements of any regulation made by the
Minister of Police; and (b) in a designated area deemed suitable for such purposes by the
Departmental Heads: Police, Justice and Constitutional Develop- ment or Correctional Services in their area of responsibility.’’.
Insertion of sections 36D and 36E in Act 51 of 1977
2. The following sections are hereby inserted in the Criminal Procedure Act, 1977, after section 36C:
‘‘Powers in respect of buccal samples, bodily samples and crime scene samples
36D. (1) Subject to section 36A(5), an authorised person must— (a) take a buccal sample; or (b) cause the taking of any other bodily sample by a registered medical
practitioner or registered nurse defined in the National Health Act, of any person— (i) after arrest but before appearance in court to be formally charged for
any offence referred to in Schedule 8;
6
5
10
15
20
25
30
35
40
45
50
8 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(ii) released on bail in respect of any offence referred to in Schedule 8, if a buccal sample or a bodily sample of that person was not taken upon his or her arrest;
(iii) upon whom a summons has been served in respect of any offence referred to in Schedule 8;
(iv) whose name appears on the National Register for Sex Offenders; or (v) charged or convicted by a court in respect of any offence, which the
Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.
(2) Subject to section 36A(5), an authorised person may— (a) take a buccal sample; or (b) cause the taking of any other bodily sample by a registered medical
practitioner or registered nurse, of any person— (i) after arrest but before appearance in court to be formally charged in
respect of any offence; (ii) released on bail in respect of any offence, if a buccal sample or bodily
sample was not taken upon his or her arrest; (iii) upon whom a summons has been served in respect of any offence; (iv) whose name appears on the National Register for Sex Offenders; or (v) charged or convicted by a court in respect of any offence, which the
Minister has by notice in the Gazette, and after notification of Parliament, declared to be an offence for the purposes of this subsection.
(3) The authorised person must supervise the taking of a buccal sample from a person referred to in subsection (1) or (2) who is required to submit such sample and who requests to take it himself or herself. (4) The Station Commander or other relevant commander must within 30
days furnish every bodily sample taken under subsection (1) or (2) to the authorised officer, who must carry out a forensic DNA analysis on every such sample in terms of Chapter 5B of the South African Police Service Act. (5) Subject to section 36A(5), nothing in this Chapter prohibits—
(a) an authorised person from re-taking or supervising the re-taking of a buccal sample from any person referred to in subsection (1), (2) or (3), if the buccal sample taken from him or her was either not suitable or insufficient for forensic DNA analysis; or
(b) a registered medical practitioner or registered nurse from re-taking a bodily sample taken from any person referred to in subsection (1) or (2), if the bodily sample taken from him or her was either not suitable or insufficient for forensic DNA analysis.
(6) The forensic DNA profile derived from bodily samples, taken under any power conferred by this section, may be used to conduct a comparative search. (7) (a)Any forensic DNA profile derived from such sample, taken under
any power conferred by this section must only be used for the purposes referred to in section 15F of the South African Police Service Act. (b) The forensic DNA profile derived from bodily samples, taken under
any power conferred by this section must be retained on, or removed from, the NFDD in accordance with the provisions of Chapter 5B of the South African Police Service Act. (c) Any person who uses or allows the use of a bodily sample, crime
scene sample or any forensic DNAprofile derived from such sample for any purpose other than as contemplated in paragraph (a), is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine.
8
5
10
15
20
25
30
35
40
45
50
55
10 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(d) Intimate samples may only be taken— (i) by a registered medical practitioner or registered nurse; and (ii) in accordance with strict regard to decency and order.
Samples for investigation purposes
36E. (1) Subject to subsection (2) and section 36A(5), an authorised person may take a buccal sample of a person or a group of persons, or supervise the taking of a buccal sample from a person who is required to submit such sample and who requests to do so himself or herself if there are reasonable grounds to— (a) suspect that the person or that one or more of the persons in that group
has committed an offence referred to in Schedule 8; and (b) believe that the buccal sample or the results of the forensic DNA
analysis thereof, will be of value in the investigation by excluding or including one or more of those persons as possible perpetrators of the offence.
(2) If a person does not consent to the taking of a buccal sample under this section, a warrant may be issued by a judge or a magistrate if it appears from written information given by the authorised person on oath or affirmation that there are reasonable grounds for believing that— (a) any person from whom a buccal sample is required has committed an
offence listed in Schedule 8; and (b) the sample or the results of an examination thereof, will be of value in
the investigation by excluding or including that person as a possible perpetrator of the offence.
(3) The provisions of section 36D(4), (5)(a), (6) and (7) apply with the necessary changes, to a sample or forensic DNA profile derived therefrom as contemplated in subsection (1).’’.
Amendment of section 212 of Act 51 of 1977, as amended by section 12 of Act 56 of 1979, sections 46 and 47 of Act 97 of 1986, section 11 of Act 5 of 1991, section 40 of Act 122 of 1991, section 9 of Act 86 of 1996, section 6 of Act 34 of 1998 and section 4 of Act 6 of 2010
3. Section 212 of the Criminal Procedure Act, 1977, is hereby amended by— (a) the substitution for subsection (6) of the following subsection:
‘‘(6) In criminal proceedings in which the finding of or action taken in connection with any particular fingerprint [or], body-print, bodily sample or crime scene sample is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State and that he or she is in the performance of his or her official duties— (a) found such fingerprint [or], body-print, bodily sample or crime
scene sample at or in the place or on or in the article or in the position or circumstances stated in the affidavit; or
(b) dealt with such fingerprint [or], body-print, bodily sample or crime scene sample in the manner stated in the affidavit, shall, upon the mere production thereof at such proceedings, be prima facie proof that such fingerprint [or], body-print, bodily sample or crime scene sample, was so found or, as the case may be, was so dealt with.’’; and
(b) the substitution in subsection (8) for paragraph (a) of the following paragraph: ‘‘(a) In criminal proceedings in which the collection, receipt, custody,
packing, marking, delivery or despatch of any fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue (as defined in section 1 of the National Health Act), or any object of
10
5
10
15
20
25
30
35
40
45
50
12 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
whatever nature is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges— (i) that he or she is in the service of the State or of a provincial
administration, any university in the Republic or anybody desig- nated by the Minister under subsection (4);
(ii) that he or she in the performance of his or her official duties— (aa) received from any person, institute, state department or body
specified in the affidavit, a fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit;
(bb) delivered or despatched to any person, institute, state depart- ment or body specified in the affidavit, a fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit, which was packed or marked or, as the case may be, which he or she packed or marked in the manner described in the affidavit;
(cc) during a period specified in the affidavit, had a fingerprint or body-print, article of clothing, specimen, bodily sample, crime scene sample, tissue or object described in the affidavit in his or her custody in the manner described in the affidavit, which was packed or marked in the manner described in the affidavit,
shall, upon the mere production thereof at such proceedings, be prima facie proof of the matter so alleged: Provided that the person who may make such affidavit in any case relating to any article of clothing, specimen, bodily sample, crime scene sample or tissue, may issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certifi- cate.’’.
Amendment of section 225 of Act 51 of 1977, as amended by section 5 of Act 6 of 2010
4. The following section is hereby substituted for section 225 of the Criminal Procedure Act, 1977:
‘‘Evidence of prints, bodily samples or bodily appearance of accused
225. (1) Whenever it is relevant at criminal proceedings to ascertain whether— (a) any fingerprint [or], body-print or bodily sample, as defined under
Chapter 3, or the information derived from such prints or samples, of an accused at such proceedings corresponds to any other fingerprint [or], body-print, bodily sample, crime scene sample or the information derived from such samples; or
(b) [whether] the body of such an accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance,
12
5
10
15
20
25
30
35
40
45
14 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
evidence of the fingerprints or body-prints of the accused or that the body of the accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, shall be admissible at such proceedings. (2) Such evidence shall not be inadmissible by reason only thereof that
the fingerprint [or], body-print, or bodily sample as defined in Chapter 3, in question was not taken or that the mark, characteristic, feature, condition or appearance in question was not ascertained in accordance with the provisions of sections 36A, 36B, 36C, 36D, 36E or 37, or that it was taken or ascertained against the wish or the will of the accused concerned.’’.
Addition of Schedule 8 to Act 51 of 1977
5. The following Schedule is hereby inserted in Act 51 of 1977:
‘‘Schedule 8
(Sections 36D and 36E) Treason. Sedition. Public violence. Murder. Any offence referred to in Part I or Part II of Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002). Culpable homicide. Rape or compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively. Sexual assault, compelled sexual assault or compelled self-sexual assault as contem- plated in section 5, 6 or 7 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), respectively. Any sexual offence against a child or a person who is mentally disabled as contemplated in Part 2 of Chapter 3 or the whole of Chapter 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), respectively. Robbery. Kidnapping. Childstealing. Assault, when a dangerous wound is inflicted. Arson. Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence. Theft, whether under the common law or a statutory provision. Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in Schedule 1, or is in such custody in respect of the offence of escaping from lawful custody. Any—
(a) offence under the Firearms Control Act, 2000 (Act No. 60 of 2000), which is punishable with imprisonment for a period of five years or longer in terms of the said Act;
(b) offence under the Explosives Act, 2003 (Act No. 15 of 2003), which is punishable with imprisonment for a period of five years or longer in terms of the said Act;
(c) Convention offence or specified offence as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);
(d) offence of trafficking in persons as defined in section 1 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or
(e) offence of torture as defined in the Prevention and Combating of Torture of Persons Act, 2013 (Act No. 13 of 2013).
Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.’’.
14
5
10
15
20
25
30
35
40
45
50
55
16 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
Insertion of Chapter 5B in Act 68 of 1995, as amended by Act 41 of 1997, Act 47 of 1997, Act 83 of 1998, Act 40 of 2002 and Act 6 of 2010
6. The following Chapter is hereby inserted in the South African Police Service Act, 1995, after section 15D:
‘‘CHAPTER 5B
ESTABLISHMENT,ADMINISTRATIONANDMAINTENANCE OF NATIONAL FORENSIC DNA DATABASE OF SOUTH AFRICA
Interpretation
15E. For the purposes of this Chapter, unless the context indicates otherwise— (a) ‘authorised officer’ means the police officer commanding the
Division responsible for forensic services within the Service or his or her delegate;
(b) ‘authorised person’, with reference to buccal samples, means a police official or a member of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, who is not the crime scene examiner of the particular case and who has successfully completed the training prescribed by the Minister of Health under the National Health Act, in respect of the taking of a buccal sample;
(c) ‘Board’ means the National Forensic Oversight and Ethics Board established under section 15V;
(d) ‘bodily sample’ means an intimate or buccal sample taken from a person;
(e) ‘buccal sample’ means a sample of cellular material taken from the inside of a person’s mouth;
(f) ‘child’ means a person under the age of 18 years; (g) ‘comparative search’ means the comparing by the authorised officer
of forensic DNA profiles derived from bodily samples, taken under any power conferred by Chapter 3 of the Criminal Procedure Act, against forensic DNA profiles contained in the different indices of the NFDD referred to in this Chapter;
(h) ‘crime scene sample’ means physical evidence which is retrieved from the crime scene or any other place where evidence of the crime may be found, and may include physical evidence collected from the body of a person, including a sample taken from a nail or from under the nail of a person;
(i) ‘Criminal Procedure Act’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
(j) ‘DNA’ means deoxyribonucleic acid which is a bio-chemical mol- ecule found in the cells and that makes each species unique;
(k) ‘Executive Director’ means the person appointed in terms of section 6 of the Independent Police Investigative Directorate Act;
(l) ‘forensic DNAanalysis’means the analysis of sections of the DNAof a bodily sample or crime scene sample to determine the forensic DNA profile: Provided that it does not relate to any analysis pertaining to medical tests or for health purposes or mental characteristic of a person or to determine any physical information of the person other than the sex of that person;
(m) ‘forensic DNAprofile’means the results obtained from forensic DNA analysis on bodily samples taken from a person or a crime scene, providing a unique string of alpha numeric characters to provide identity reference: Provided that it does not contain any information on the health or medical condition or any information on the predisposition or physical information of that person other than the sex of that person;
(n) ‘Independent Police Investigative Directorate Act’ means the Independent Police Investigative Directorate Act, 2011 (Act No. 1 of 2011);
16
5
10
15
20
25
30
35
40
45
50
55
18 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(o) ‘intimate sample’ means a sample of blood or pubic hair or a sample taken from the genitals or anal orifice area of the body of a person, excluding a buccal sample;
(p) ‘National Health Act’ means the National Health Act, 2003 (Act No. 61 of 2003); and
(q) ‘NFDD’means the National Forensic DNADatabase of SouthAfrica, established in terms of section 15G.
Objective of Chapter
15F. The objective of this Chapter is to establish and maintain a national forensic DNA database in order to perform comparative searches for the following purposes: (a) To serve as a criminal investigative tool in the fight against crime; (b) to identify persons who might have been involved in the commission
of offences, including those committed before the coming into operation of this Chapter;
(c) to prove the innocence or guilt of an accused person in the defence or prosecution of that person;
(d) to exonerate a person convicted of an offence; or (e) to assist with the identification of missing persons or unidentified
human remains.
Establishment of national forensic DNA database
15G. (1) A national forensic DNA database within the Service, to be known as the National Forensic DNADatabase of SouthAfrica (NFDD), is hereby established. (2) The authorised officer, as the custodian of the NFDD, must ensure
that the— (a) analysis, custody and disposal of DNA samples at a forensic DNA
analysis laboratory; and (b) administration and maintenance of the NFDD, are managed independently of each other. (3) The NFDD must consist of the following indices which contain
forensic DNA profiles: (a) A Crime Scene Index; (b) an Arrestee Index; (c) a Convicted Offender Index; (d) an Investigative Index; (e) an Elimination Index; and (f) a Missing Persons and Unidentified Human Remains Index. (4) Sub-indices for children must be created under the relevant indices
referred to in subsection (3). (5) The indices must not contain the following information:
(a) The appearance of the person, other than indicating the sex of that person;
(b) medical information of the person; (c) historical information relating to the person; and (d) behavioural information of the person. (6) Nothing in this Chapter affects the use and storage of such forensic
DNAprofiles derived from samples taken in accordance with thisAct for— (a) comparative searches against forensic DNA profiles derived prior to
the coming into operation of this Chapter; and (b) the use of the results of the comparative searches as evidence in a court
of law.
18
5
10
15
20
25
30
35
40
45
50
20 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
Crime Scene Index
15H. (1) The Crime Scene Index must contain the relevant forensic DNA profiles derived by means of forensic DNA analysis, from samples that are found and collected, including at a crime scene— (a) at any place where an offence was or is reasonably suspected of having
been committed; (b) on or in the body of the victim or suspect which may be used to
identify DNA left by that person who was in contact with that person during the commission of the offence; or
(c) on anything worn or carried by the victim or suspect at the time when an offence was, or is reasonably suspected of having been committed.
(2) The authorised officer must ensure the safe and secure storage of crime scene samples, which samples must be kept indefinitely.
Arrestee Index
15I. (1) The Arrestee Index must contain forensic DNA profiles, derived by means of forensic DNA analysis, from a bodily sample taken under any power conferred by Chapter 3 of the Criminal Procedure Act where an arrestee’s forensic DNA profile does not form part of any other Index. (2) The forensic DNA profile in the Arrestee Index must be removed by
the authorised officer immediately upon application, in the prescribed manner, when a— (a) child is diverted in accordance with Chapter 8 of the Child JusticeAct,
2008 (Act No. 75 of 2008); (b) decision was made not to prosecute a person; (c) person is discharged at a preparatory examination; or (d) person is acquitted at his or her trial: Provided that there is no other outstanding criminal investigation against the person. (3) The application referred to in subsection (2) must be submitted to the
authorised officer and a copy thereof provided to the Board. (4) If no application for removal of a forensic DNAprofile, contemplated
in subsection (2) is received, the profile of the relevant person must be removed immediately after the authorised officer has been notified in accordance with subsection (5) or (6), but may not be retained for longer than— (a) three years, in the case of an adult; or (b) twelve months, in the case of a child. (5) The Clerk of the Court or Registrar of the High Court must notify the
authorised officer of an acquittal, conviction, setting aside or finding of a preliminary investigation within 60 days from the date of the verdict or outcome of the matter. (6) In respect of a decision not to prosecute or the diversion of a child in
accordance with Chapter 8 of the Child Justice Act, the prosecutor who made the decision must notify the authorised officer within 60 days from the date of the decision. (7) If an application contemplated in subsection (2) is received by the
authorised officer before a notification referred to in subsection (5) or (6) has been received, the authorised officer must enquire from the relevant authority in that regard. (8) The authorised officer must notify the relevant person referred to in
subsection (2) of the removal of his or her forensic DNA profile from the Arrestee Index. (9) The authorised officer must inform the Board quarterly of any
removal of a forensic DNA profile from the Arrestee Index in terms of subsections (2) and (4).
20
5
10
15
20
25
30
35
40
45
50
55
22 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
Convicted Offender Index
15J. (1) The Convicted Offender Index must contain forensic DNA profiles, derived by means of forensic DNA analysis, from a bodily sample— (a) that was entered into the Arrestee Index, but an arrestee has
subsequent to the entering of his or her forensic DNA profile on the Arrestee Index been convicted of an offence; or
(b) that was taken from a person convicted of an offence either before or after the coming into operation of this Chapter.
(2) Upon the conviction of a child, the child’s forensic DNAprofile must be retained on a database referred to in this Chapter, subject to the provisions relating to expungement of a conviction or sentence of a child as provided for in section 87 of the Child Justice Act, 2008 (Act No. 75 of 2008). (3) The forensic DNA profile in the Convicted Offender Index must be
removed by the authorised officer immediately upon application in the prescribed manner when— (a) a person’s conviction is set aside on appeal or review; or (b) the relevant notice in terms of section 15I(5) has been received: Provided that section 15I(4), (7), (8) and (9) are applicable with the necessary changes to the removal of forensic DNA profiles from the Convicted Offender Index. (4) The forensic DNA profile of a convicted offender who has been
pardoned in terms of section 84(2)(j) of the Constitution of the Republic of South Africa, 1996, or whose criminal record has been expunged in terms of sections 271B to 271D of the Criminal Procedure Act, must be removed by the authorised officer from the Convicted Offender Index within three years of being notified of the pardon or expungement by the Director- General: Justice and Constitutional Development. (5) In the case of a child, the forensic DNA profile on the Convicted
Offender Index must be removed within 12 months if no application for expungement referred to in subsection (2), or pardon, referred to in subsection (3) has been received from or on behalf of such child. (6) Subject to subsections (2), (3), (4) and (5) the forensic DNA profiles
in the Convicted Offender Index must be stored on the NFDD and be retained indefinitely.
Investigative Index
15K. (1) (a)An Investigative Index must contain forensic DNA profiles, derived by means of forensic DNA analysis from a bodily sample taken from a person with his or her informed consent or authorised in accordance with section 36E(2) of the Criminal Procedure Act. (b) If the person referred to in paragraph (a) is a child, the sample may be
taken with the informed consent of the child’s parent or guardian. (2) For the purposes of this section, ‘informed consent’ means that the
person consents, in writing, to the taking of a buccal sample, after a police official has informed him or her— (a) of the manner in which the buccal sample will be taken; (b) that he or she is under no obligation to give a buccal sample; (c) that the sample or the forensic DNA profile derived from it may
produce evidence that might be used in a court of law; (d) that the buccal sample taken under this section, and the forensic DNA
profile derived from it, may only be used for purposes referred to in section 15F; and
22
5
10
15
20
25
30
35
40
45
50
24 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(e) that any profile derived from a sample taken under this section will be removed and that the person will be notified within three months after the authorised officer is notified that the case is finalised.
(3) A profile in the Investigative Index must— (a) be stored on the NFDD; and (b) be removed within three months after the authorised officer is notified that the
case is finalised and the relevant person must be notified, within the same period of such removal.
Elimination Index
15L. (1) The Elimination Index must contain forensic DNA profiles, derived by means of forensic DNA analysis, from a buccal sample taken from— (a) a police official, or any other person, who as part of his or her official
duties attends or processes a crime scene; (b) a police official or any other person, who may be handling or
processing or examining crime scene samples or bodily samples under this Chapter;
(c) any person directly involved in the servicing or calibration of equipment or in laboratories used in the forensic DNA analysis process;
(d) any person who enters an examination area in a forensic DNA laboratory, or processes, handles or examines crime scene samples or bodily samples, under this Chapter; and
(e) where possible, any person directly involved in the manufacturing of consumables, equipment, utensils or reagents.
(2) From the commencement of this Chapter, all new recruits to the Service must be required to submit a buccal sample for purposes of forensic DNA profiles derived therefrom to be included in the Elimination Index. (3) The forensic DNAprofiles in the Elimination Index must be stored on
the NFDD and be retained, unless the profile has been migrated to another Index or is no longer required. (4) A person referred to in subsection (1) may apply, in the prescribed
manner, to have his or her profile removed from the Elimination Index when it is no longer required. (5) Nothing in this section prohibits the forensic DNA profile derived
from a sample taken from any person mentioned in subsection (1) or (2) to be subjected to a comparative search for purposes referred to in section 15F.
Missing Persons and Unidentified Human Remains Index
15M. (1) The Missing Persons and Unidentified Human Remains Index must contain forensic DNA profiles, derived by means of forensic DNA analysis, from— (a) any bodily sample of a missing or unidentified person; or (b) any bodily sample or crime scene sample taken from unidentified
human remains. (2) Familial searches may be conducted in respect of forensic DNA
profiles referred to in subsection (1). (3) Forensic DNA profiles referred to in subsection (1) must be stored
until the purpose for which they have been stored have been achieved, and must then be removed. (4) A request to conduct a familial search must be submitted to the
authorised officer and a copy thereof provided to the Board. (5) The Board must be notified of any request for the use of familial
searches and the outcome thereof.
24
5
10
15
20
25
30
35
40
45
50
26 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(6) The Minister must ensure that a policy relating to familial searches is developed. (7) (a) For the purposes of this section, ‘familial searches’ means a
technique whereby a forensic DNA profile derived from a sample— (i) of a missing person; or (ii) obtained from a family member of a missing person, is deliberately searched against the Missing Persons and Unidentified Human Remains Index and the Crime Scene Index of the NFDD to obtain a list of forensic DNA profiles that are almost similar to the forensic DNA profile derived from a sample referred to in subparagraph (i) or (ii). (b) The Service may use the results of the familial searches referred to in
paragraph (a) as an investigative lead, by a specially trained police official, to— (i) interview family members of the near matches; or (ii) identify unidentified human remains.
(c) The results of familial searches must be dealt with in a sensitive manner.
Comparative forensic DNA search and communication of information
15N. (1) The authorised officer must perform comparative searches on forensic DNA profiles that are entered onto the NFDD for the purposes referred to in section 15F, and communicate the outcome of the comparative search as contemplated in subsection (2). (2) No person may disclose any information which he or she had
obtained in the exercise of any powers or the performance of any duties in terms of this Chapter, except— (a) to a person who of necessity requires it for the performance of his or
her functions in terms of this Chapter or any other Act or as provided for in section 15O;
(b) if he or she is a person who of necessity supplies it in the performance of his or her functions in terms of this Act or any other Act;
(c) in respect of information which is required in terms of any law or as evidence in any court of law;
(d) to any competent authority which requires it for the institution of any criminal proceedings, including a preliminary investigation or an inquest;
(e) to an accused person, or where the person is a child to his or her parent or guardian, or his or her legal representative, for criminal defence purposes; or
(f) to a person convicted of an offence, or his or her legal representative, for exoneration purposes.
Foreign and international law enforcement agencies
15O. (1) The authorised officer may, subject to the provisions of this Act and any other applicable law, upon receipt of a forensic DNA profile from a foreign state or a recognised international law enforcement organisation, court or tribunal, compare the forensic DNAprofile with any of the Indices in the NFDD, except the Investigative Index, for the purposes set out in section 15F. (2) The authorised officer may for the purposes referred to in section 15F,
communicate a forensic DNA profile contained in the Crime Scene Index and the Missing Persons and Unidentified Human Remains Index to a foreign state or a recognised international law enforcement organisation, court or tribunal. (3) Subsections (1) and (2) may only be utilised for investigative
purposes and should forensic DNA results be required for purposes of evidence in a court of law, the processes referred to in the International
26
5
10
15
20
25
30
35
40
45
50
55
28 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
Cooperation in Criminal Matters Act, 1998 (Act No. 75 of 1996), must be utilised. (4) The communication of the outcome of the comparative search
contemplated in subsection (1) or the profile contemplated in subsection (2) may only be done subject to the international obligations of the Republic. (5) Any request in terms of this section and the outcome thereof must be
reported to the Board.
Compliance with Quality Management System
15P. (1) The authorised officer must develop and recommend standards for quality management, including standards for testing the proficiency of forensic science laboratories and forensic analysts conducting forensic DNA analysis. (2) The standards referred to in subsection (1) must—
(a) comply with the South African National Accreditation System established under section 3 of the Accreditation for Conformity Assessment, Calibration and Good Laboratory PracticeAct, 2006 (Act No. 19 of 2006), and standards set by the International Organization for Standardization;
(b) specify criteria for quality management and proficiency tests applied to the various types of forensic DNA analysis; and
(c) include a system for grading proficiency testing performance to determine whether a laboratory or forensic analyst is performing acceptably.
Analysis, retention, storage, destruction and disposal of samples
15Q. (1) Bodily samples and crime scene samples received at the forensic laboratory must be analysed and loaded on the NFDD within 30 days, unless there is a compelling reason in terms of priorities why such samples cannot be analysed and loaded within that period. (2) The authorised officer must report to the Board any compelling
reason contemplated in subsection (1) when it occurs. (3) If a sample is not analysed within the period referred to in subsection
(1) such non-compliance will not have any effect on the investigation or prosecution concerned. (4) The authorised officer must institute disciplinary action for any
failure to analyse and load the samples on the NFDD within the period referred to in subsection (1) without a compelling reason. (5) Any bodily sample taken from a person from the commencement of
this Chapter and which is not a crime scene sample must be destroyed and disposed of within three months after a forensic DNA profile is obtained and loaded on the NFDD. (6) Records of the destruction of bodily samples must be kept by the
authorised officer in the prescribed manner and must be reported to the Board annually.
Infrastructure
15R. The National Commissioner or his or her delegate must acquire and maintain adequate information technology infrastructure and systems to support the efficient analysis of DNA samples, the performance of comparative searches against the NFDD and the administrative mainte- nance of the NFDD.
Offences and penalties
15S. (1) Any person who, with regard to any bodily sample, crime scene sample or a forensic DNA profile derived therefrom—
28
5
10
15
20
25
30
35
40
45
50
30 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(a) uses or allows the use of those samples or forensic DNA profiles derived therefrom for any purpose other than those referred to in this Chapter; or
(b) tampers with or manipulates the process or the samples or forensic DNA profiles;
(c) falsely claims such samples or forensic DNA profiles derived therefrom to have been taken from a specific person whilst knowing them to have been taken from another person or source;
(d) discloses information in contravention of section 15N(2); or (e) unlawfully loses, damages or destroys information on the NFDD, is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine. (2) Any person who causes the unlawful loss of, damage to or
unauthorised destruction of information on the NFDD is guilty of an offence and liable in the case of a natural person, to imprisonment for a period not exceeding 15 years, and in the case of a juristic person, to a fine.
Awareness and training programs
15T. (1) The Secretary of Police must ensure that guidelines relating to awareness programs contemplated in subsections (2) and (3) are developed and their implementation monitored and assessed on a regular basis. (2) The National Commissioner and the Executive Director must develop
awareness and training programs for the Service and the Independent Police Investigative Directorate respectively, on the regulations referred to in section 15AD in order to support the implementation and their application of this Chapter. (3) The National Commissioner must develop awareness programs to
make the public aware of the provisions of this Chapter and in particular their rights relating to the taking of DNA samples, the keeping and destruction of DNA samples and powers of the Board to receive and assess complaints relating to DNA.
Access to and security of NFDD
15U. (1) The National Commissioner must secure the integrity of information on the NFDD by taking appropriate, reasonable technical and organisational measures to prevent— (a) loss of, damage to or unauthorised destruction of information on the
NFDD; and (b) unlawful access to, communication or processing of information on
the NFDD. (2) In order to give effect to subsection (1), the National Commissioner
must take reasonable measures to— (a) identify all reasonable foreseeable internal and external risks to
information on the NFDD under his or her control; (b) establish and maintain appropriate safeguards against the risks
identified; (c) regularly verify that the safeguards are effectively implemented; and (d) ensure that the safeguards are continually updated in response to new
risks or deficiencies in previously implemented safeguards. (3) The National Commissioner must have due regard to generally
accepted information security practices and procedures which may apply to the Service generally or be required in terms of specific laws and regulations relating to security of information applicable to the Service.
30
5
10
15
20
25
30
35
40
45
50
32 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(4) The National Commissioner, after consultation with the Board, must within six months of the commencement of this Chapter develop standard operating procedures regarding— (a) access to the NFDD; and (b) the implementation of safety measures to protect the integrity of
information contained on the NFDD. (5) The National Commissioner must report to the National Assembly
and the Board— (a) any breach of the access and security measures referred to in this
section as and when such breach occurs; (b) any loss of, damage to or unauthorised destruction of information on
the NFDD; and (c) steps taken to address such breach and to prevent the recurrence
thereof. (6) The Secretary of Police must monitor and oversee the security
measures instituted by the National Commissioner.
Establishment and composition of National Forensic Oversight and Ethics Board
15V. (1) A National Forensic Oversight and Ethics Board is hereby established. (2) The Board must consist of not more than ten persons appointed by the
Minister on a part-time basis for a period not exceeding five years of whom— (a) five persons must be from outside the public sector with knowledge
and experience in forensic science, human rights law or ethics relating to forensic science; and
(b) four persons must be from the public sector on the level of at least a Chief Director, namely—
(i) the Secretary of Police or his or her representative; (ii) a representative of the Department of Health who has
knowledge in the field of DNA; (iii) a representative from the Department of Justice and Constitu-
tional Development who has a sound knowledge of constitu- tional law; and
(iv) a representative of the Department of Correctional Services. (3) The members of the Board, referred to in subsection (2)(a), must be
appointed by the Minister after inviting nominations from the public. (4) The Minister must appoint—
(a) the chairperson of the Board who must be a retired judge or a senior advocate with knowledge and experience in the field of human rights; and
(b) a deputy chairperson from the remaining members of the Board. (5) The Minister must report to the National Assembly on the—
(a) appointment of the Board, including the names of the members of the Board and a synopsis of their expertise and suitability to serve on the Board; and
(b) removal or resignation of members from the Board, within 14 days of the appointment, removal or resignation, if Parliament is in session or, if Parliament is not in session, within 14 days after the commencement of its next ensuing session. (6) The deputy chairperson must exercise all the powers and perform all
the duties of the chairperson whenever the chairperson is unable to do so. (7) The term of appointment of a member of the Board may, before the
expiry thereof, be renewed for an additional term. (8) In the case of a vacancy, the Minister must fill the vacancy within a
reasonable period of time, which period must not exceed six months.
32
5
10
15
20
25
30
35
40
45
50
55
34 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
Disqualification, removal and resignation from Board
15W. (1) A person is disqualified from being appointed or continuing to serve as a member of the Board if he or she— (a) is not a citizen of the Republic; (b) is an unrehabilitated insolvent; (c) has been declared by a court to be mentally ill or unfit; or (d) has been convicted of a criminal offence. (2) The Minister may, after due enquiry, remove a member from the
Board on account of— (a) misconduct; (b) incapacity; (c) incompetence; (d) absence from three consecutive meetings of the Board without the
prior permission of the Board, except on good cause shown; (e) ill health; (f) conflict of interest; (g) unethical conduct; or (h) disqualification as contemplated in subsection (1). (3) A member may resign by giving 30 days written notice of his or her
resignation to the Minister. (4) A member of the Board may be suspended from the Board by the
Minister pending the consideration of the removal of such member from the Board.
Meetings of Board
15X. (1) The first meeting of the Board must be convened by the Minister and thereafter the meetings of the Board must be held at least quarterly. (2) The Board may determine its own governance rules and procedures.
Funding, secretariat and remuneration of members of Board
15Y. (1) The Board must be funded from the budget allocation of the Civilian Secretariat for Police. (2) The Minister must, in terms of the Public Service Act, 1994
(Proclamation No. 103 of 1994), appoint a full-time secretariat to provide administrative support to the Board. (3) The Minister may, in consultation with the Minister of Finance,
determine the remuneration or payment of expenses for members of the Board, who are not appointed in terms of the Public Service Act, 1994, or the Human Rights Commission Act, 1994 (Act No. 54 of 1994).
Functions of Board
15Z. (1) The Board must— (a) monitor the implementation of this Chapter; (b) make proposals to the Minister—
(i) on the improvement of practices regarding the overall opera- tions of the NFDD;
(ii) the ethical, legal and social implications of the use of forensic DNA; and
(iii) on the training and the development of criteria for the use of familial searches;
(c) provide oversight over the processes relating to— (i) the collection, retention, storage, destruction and disposal of
DNA samples; (ii) the retention and removal of forensic DNA profiles, as
provided for in this Act; (iii) familial searches;
34
5
10
15
20
25
30
35
40
45
50
36 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(iv) any breach in respect of the taking, transporting, analysis, storing, use and communication of DNA samples and forensic DNA profiles, including security breaches; and
(v) security and quality management systems. (d) handle complaints by—
(i) receiving and assessing complaints about alleged— (aa) violations relating to the abuse of DNA samples and
forensic DNA profiles; (bb) security breaches, and reporting to complainants in respect thereof;
(ii) gathering such information which will assist the Board in discharging its duties and carrying out its functions under this section;
(iii) attempting to resolve complaints by means of dispute resolu- tion mechanisms such as mediation and conciliation;
(iv) referring complaints to relevant authorities where applicable; and
(v) reporting to the Minister the outcome of every complaint; (e) consider all reports submitted to it in terms of this Chapter; and (f) consider any other matter related to this Chapter. (2) The Board may gather such information which will assist it in
discharging its duties and carrying out its functions under this Chapter. (3) A copy of the report contemplated in section 15AC(5) must be
submitted to the National Commissioner to follow up and address the issues contained therein. (4) The National Commissioner must report to the Board within 90 days
of receipt of the report contemplated in section 15AC(5) on the steps taken to rectify the issues contained therein. (5) The Board may establish committees to deal with specific matters as
and when required. (6) The Board must submit a report on the execution of its functions to
any authority established by law regulating the protection of personal information.
Procedure for handling of complaints
15AA. (1) The Board may, either as a result of a complaint lodged with it or of its own accord consider a complaint. (2) The Board must refer a complaint contemplated in subsection (1) to
a committee of the Board for assessment in the prescribed manner. (3) The committee must, after its assessment of the complaint, report to
the Board on the outcome of such assessment including recommendations relating thereto. (4) In the case where a criminal act is alleged to have been committed by
a person subject to an assessment, the Board must refer the matter to the relevant authorities for further action. (5) The Board must ensure that recommendations regarding disciplinary
matters are referred to— (a) the National Commissioner; (b) the Executive Director; or (c) any other relevant authority. (6) The relevant authority referred to in subsections (4) and (5) must
report the outcome of such further action to the Board.
Disciplinary recommendations
15AB. (1) The National Commissioner or the Executive Director must, with regard to recommendations on disciplinary matters referred to him or her in terms of section 15AA(5)— (a) within 30 days of receipt thereof, initiate disciplinary proceedings in
terms of the recommendations made by the Board; and
36
5
10
15
20
25
30
35
40
45
50
55
38 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(b) immediately on finalisation of the disciplinary matter inform the Minister in writing of the outcome thereof and provide a copy thereof to the Board.
(2) The National Commissioner or the Executive Director must finalise disciplinary proceedings relating to DNAwithin 60 days from the initiation thereof and must report to the Board and the Minister the reasons for not finalising the proceedings within that period. (3) If the disciplinary proceedings are not instituted and finalised within
the periods referred to in subsections (1) and (2), it would not invalidate the proceedings.
Parliamentary oversight
15AC. (1) The National Commissioner must provide, as part of the annual report of the Service to the National Assembly in terms of section 55(d) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), a report— (a) in respect of the performance of the NFDD; (b) relating to the use of forensic DNA evidence in the investigation of
crime; and (c) relating to disciplinary proceedings concerning forensic DNAmatters. (2) The Minister must not later than five years after the commencement
of this Chapter, submit a report to the National Assembly on whether any legislative amendments are required to improve the functioning of the NFDD and the use of forensic DNA evidence in the combating of crime. (3) After the initial period of five years referred to in subsection (2), the
Minister must every three years submit a report referred to in subsection (2) to the National Assembly. (4) The Executive Director must submit a report, as part of the
Independent Police Investigative Directorate’s annual report, to the National Assembly in terms of section 55(d) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), on the performance of the functions of the Directorate in terms of this Chapter, including disciplinary proceedings concerning forensic DNA matters. (5) The Board must annually submit a report to the NationalAssembly on
its functions in terms of this Chapter.
Regulations
15AD. (1) The Minister must make regulations regarding all matters which are reasonably necessary or expedient to be provided for and which must be followed by all police officials or members of the Independent Police Investigative Directorate, referred to in the Independent Police Investigative Directorate Act, in order to achieve the objects of this Chapter, including the following: (a) The requirements for the suitability of areas to be designated in terms
of section 36A(5)(b) of the Criminal Procedure Act; (b) the manner in which to secure a crime scene for the purposes of
collecting crime scene samples; (c) the manner in which to safely preserve and ensure timely transfer of
collected samples to the forensic science laboratories; (d) the manner in which to request access to information stored on the
NFDD; (e) the manner in which DNA samples must be destroyed; (f) the manner in which complaints must be lodged to, and assessed by,
the Board; (g) the application process for access to the forensic DNA profile and
crime scene sample for exoneration purposes;
38
5
10
15
20
25
30
35
40
45
50
40 No. 37268 GOVERNMENT GAZETTE, 27 January 2014 Act No. 37 of 2013 Criminal Law (Forensic Procedures) Amendment Act, 2013
(h) the process to be followed by the Minister in the appointment, suspension and removal of members of the Board;
(i) the process to be followed with regard to the destruction of DNA samples and the removal of forensic DNA profiles derived therefrom;
(j) the requirements for the taking of buccal samples in a designated area; and
(k) the development of strict protocols and training relating to familial searches.
(2) The Minister may make regulations regarding— (a) any matter which is required or permitted by this Chapter to be
prescribed; and (b) any administrative or procedural matter necessary or expedient to give
effect to the provisions of this Chapter. (3) A regulation made under subsection (1) may prescribe a fine or a
period of imprisonment for a maximum of five years for any contravention thereof or failure to comply therewith. (4) The regulations contemplated in subsection (1) must be tabled in
Parliament for notification within six months after the commencement of this Chapter.’’.
Transitional arrangements
7. (1) For the purpose of this section— ‘‘Casework Index’’means the index containing the forensic DNAprofiles derived from crime scene samples collected before the commencement of this Act; ‘‘Reference Index’’means the index containing the forensic DNAprofiles derived from bodily samples of—
(a) a victim; (b) a suspect; (c) a convicted offender; (d) a person who has consented to provide a sample; (e) a contractor or supplier of re-agents or equipment to the forensic DNA
laboratory; (f) personnel employed at the forensic DNA laboratory; and (g) a visitor to the forensic DNA laboratory,
taken before the commencement of this Act; ‘‘thisAct’’means the Criminal Law (Forensic Procedures)AmendmentAct, 2013.
(2) Comparative searches between forensic DNAprofiles may be conducted using the repository categorised into a Casework Index and a Reference Index. (3) The forensic DNA profiles which were administered and maintained before this
Act came into operation, must be maintained by the authorised officer until the system solution to support the NFDD is operational, which must be within four years from the date of the coming into operation of this Act. (4) The forensic DNA profiles contained in the Casework Index and the Reference
Index must be transferred to the NFDD within three months of the system solution referred to in subsection (3) being operational. (5) The period of four years referred to in subsection (3) may be extended by the
Minister, on the request of the National Commissioner of the South African Police Service, or of his or her own accord and after approval by the National Assembly. (6) The National Commissioner of the South African Police Service must report
quarterly, in writing, to the National Assembly and the Board on the progress made in the acquisition of the system solution to support the NFDD until it is fully operational. (7) The National Commissioner of the South African Police Service must, with the
assistance of the National Commissioner of Correctional Services, from the date of commencement of this section, ensure that a buccal sample is taken within two years of any person serving a sentence of imprisonment in respect of any offence listed in Schedule 8 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977)—
(a) before the release of the person, if the buccal sample had not already been taken upon his or her arrest; or
40
5
10
15
20
25
30
35
40
45
50
55
(b) who is released before their sentence is completed either on parole or under correctional supervision by a court.
(8) The National Commissioner of Correctional Services must, from the date of commencement of this Act, provide the National Commissioner of the South African Police Service with the list of offenders who are serving a sentence in respect of any offence listed in Schedule 8 and have been released on parole or under correctional supervision. (9) The National Commissioner of the South African Police Service, with the
assistance of the National Commissioner of Correctional Services, must ensure that the forensic DNAprofiles of persons who are in custody pending their reappearance in court in respect of any offence referred to in Schedule 8 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and whose DNAsamples were not taken upon arrest when thisAct commences, are taken. (10) For the purposes of subsections (7), (8) and (9) a buccal sample must be taken by
an authorised person who is a police official. (11) The National Forensic Oversight and Ethics Board must— (a) be appointed before the commencement of this Act, and (b) have its first meeting convened within 30 days after the commencement of this
Act. (12) The removal of the forensic DNA profiles in the Casework Index and Reference
Index must be performed within one year after the system solution to support the operation of the NFDD has been established. (13) The Director-General of the Department of Justice and Constitutional
Development must on a monthly basis provide the National Commissioner of the South African Police Service with an updated list of all persons that were ordered to be entered on the National Register for Sexual Offenders, until the system solution referred to in subsections (3) and (12) comes into operation. (14) Any forensic DNA profile derived from a crime scene sample or derived from a
sample related to a missing person or unidentified human remains and which was received from or communicated with a foreign state or a recognised international law enforcement organisation, court or tribunal before the commencement of this Act, must be deemed to have been received from or communicated in terms of section 15O of the South African Police Service Act, 1995 (Act No. 68 of 1995).
Repeal of laws
8. The following laws are hereby repealed to the extent indicated in column 4 of the table hereunder:
Act No. Year Name of Act Extent of amendment or repeal 60 2000 Firearms Control
Act 1. The definitions of ‘‘authorised person’’,
‘‘body-prints’’, ‘‘child’’ and ‘‘comparative search’’ in section 1 are hereby repealed.
2. Section 113 is hereby repealed, except for subsection (4).
Act No. Year Name of Act Extent of amendment or repeal 15 2003 Explosives Act 1. The definitions of ‘‘authorised person’’,
‘‘body-prints’’, ‘‘child’’ and ‘‘comparative search’’ in section 1 are hereby repealed.
2. Section 9 is hereby repealed, except for subsection (4).
Short title and commencement
9. This Act is called the Criminal Law (Forensic Procedures) Amendment Act, 2013, and comes into operation on a date determined by the President by proclamation in the Gazette.
42
5
10
15
20
25
30
35
40
45
50